De Centeno v. Gulf Fleet Crews, Inc.

• Decision Date: 22 August 1986
• Docket Number: No. 85-3124,85-3124
• Citation: 798 F.2d 138
• Parties: Amparo Viuda DE CENTENO, et al., Plaintiffs-Appellees, v. GULF FLEET CREWS, INC., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 138

798 F.2d 138

1987 A.M.C. 2462

Amparo Viuda DE CENTENO, et al., Plaintiffs-Appellees, v. GULF FLEET CREWS, INC., et al., Defendants-Appellants.

No. 85-3124.

United States Court of Appeals Fifth Circuit.

Aug. 22, 1986.

Michael A. McGlone, Lemle, Kelleher, Kohlmeyer, et al., New Orleans, La., for defendants-appellants.

Arnold R. Ginsberg, Miami, Fla., Fine, Waltzer & Bagneris, Bruce C. Waltzer, Frank M. RePass, III, New Orleans, La., for plaintiffs-appellees.

Before GOLDBERG, WILLIAMS and DAVIS, Circuit Judges.

Appeal from the United States District Court for the Eastern District of Louisiana.

W. EUGENE DAVIS, Circuit Judge:

Appellant, Gulf Fleet Crews, Inc. (Gulf Fleet) appeals a judgment entered on a verdict against it for $776,000 under the Jones Act. We affirm the jury's verdict of liability under the Jones Act, but vacate the damage award and remand for a new damages trial. We first review the facts developed at trial that are most favorable to the verdict.

I.

In November 1980, Gulf Fleet employed Centeno, a Honduran citizen, as a cook aboard the M/V HERCULES DEL GOLFO. Centeno's one year employment agreement with Gulf Fleet provided for $34 per day compensation and granted him the right to take thirty days off without pay after a minimum of ninety days on board the vessel.

In early January 1981, the HERCULES DEL GOLFO called at Port Hueneme, California. The U.S. Coast Guard inspected the vessel and ordered the master to man the vessel with American seaman because it was an American flag vessel operating in American waters. Arrangements were made through Gulf Fleet's agent, Kenneth Hughes, to transport Centeno and the other Honduran crew-members back to Honduras. On January 11, 1981, Centeno reported to the master of the vessel that he was ill and the vessel's agent arranged for Centeno to see a local physician, Dr. Dorothy Turner. Although all of Dr. Turner's records of Centeno's visit were unavailable at trial, Gulf Fleet produced Dr. Turner's bill which indicated that she treated Centeno for influenza. Centeno returned to the ship immediately after his visit with Dr. Turner.

Randal Silcox, one of Centeno's shipmates, testified that Centeno's condition deteriorated after his visit to Dr. Turner. Silcox testified that upon returning to the ship, Centeno went straight to bed; Silcox, who was in the galley, heard Centeno moaning in pain. When Silcox visited Centeno, who spoke no English, Centeno put his hands on his abdomen, indicating pain in this area. Centeno's wife testified that she was alarmed when Centeno arrived home in Honduras on January 15 because he looked ill and emaciated. She took Centeno to a local physician, Dr. Wilfred Chavarria, that same day.

Dr. Chavarria noted the following observations of Centeno upon his initial examination on January 15, 1981:

Patient relates that for one week, he has been feeling weak, downcast, with no appetite, suffering headaches, particularly in frontal region and that he urinates a lot. He is constantly thirsty. For this reason he ingests large amounts of liquids, especially water. He has difficulty in concentrating on reading and speaking.

Based upon these observations, Dr. Chavarria ordered a blood test so that Centeno's glucose level could be determined. The tests indicated that Centeno's glucose count was almost three times the normal level. Dr. Chavarria then diagnosed diabetes mellitus and diabetic pre-coma, and took appropriate action to reduce Centeno's glucose level.

Dr. Chavarria testified that the symptoms Centeno described were typical of diabetes and that any physician confronted with a patient displaying these symptoms should have suspected diabetes and ordered a blood test to rule it out. Dr. Chavarria also testified that Centeno's general appearance indicated that his symptoms had been present for at least a week before January 15 when Chavarria first diagnosed diabetes.

Centeno's condition improved dramatically as a result of Dr. Chavarria's treatment. By January 20, Centeno's glucose stabilized at a normal level. On January 28, however, Centeno developed an acute case of diarrhea with strong stomach cramps and vomiting. Centeno apparently ingested bacteria from the local water supply in Honduras that precipitated an infection. This condition persisted and gradually intensified until February 3, 1981, when Centeno died. Dr. Chavarria's medical report listed the direct cause of death as cardiac arrest, with an indirect cause being "Organic exhaustion in all respects due to diabetic pre-coma suffered by patient a few days ago."

Dr. Chavarria gave the following testimony when asked to explain how Centeno's diabetic pre-coma was related to his death:

The diabetic pre-coma by its nature and like any serious disease reduces your organic defense to sickness or disease. Consequently, the body in this condition doesn't have the strength nor the vitality to face, with any possibilities of success, an infection or any pathological aggression.

Dr. Chavarria concluded that Centeno's death was related to the delay in the diagnosis and treatment of his diabetes:

If Mr. Centeno would have remained in the United States under medical treatment, it is logical that his diabetes would have been controlled, and if they would have allowed him to return to Honduras in good health, with his organic defenses recovered, with his physical constitution wholesome, and, in those conditions, he would have resisted a diarrhea such as what he had.

Centeno's surviving widow and three minor children sought damages for Centeno's wrongful death under the Jones Act and the general maritime law. The survivors contended that the crew of the vessel was negligent in failing to properly attend to Centeno's medical needs and that the incompetent crew rendered the HERCULES DEL GOLFO unseaworthy. The jury found that Gulf Fleet was negligent and returned a $776,000 verdict in favor of the plaintiffs and against Gulf Fleet; the jury also found that the vessel was seaworthy and exonerated Gulf Fleet from liability under the general maritime law. In this appeal, Gulf Fleet challenges the jury's finding of negligence and attacks the award as excessive.

II.

A.

Gulf Fleet contends that the district court erred in refusing to grant its motions for a directed verdict and judgment notwithstanding the verdict on the finding of liability against it. We conclude that there is sufficient evidence to support the jury's findings that Gulf Fleet negligently failed to provide adequate medical treatment to Centeno and that such negligence was a cause of Centeno's death.

The legal obligation of a shipowner to attend to the medical needs of its crew is undisputed: A shipowner has a duty to provide prompt and adequate medical care to its seamen. DeZon v. American President Lines, Ltd., 318 U.S. 660, 667-68, 63 S.Ct. 814, 818-19, 87 L.Ed. 1065 (1943); Joyce v. Atlantic Richfield Co., 651 F.2d 676, 684 (10th Cir.1981); Picou v. American Offshore Fleet, Inc., 576 F.2d 585, 587 (5th Cir.1978).

If the jury accepted Dr. Chavarria's testimony, which it apparently did, it was entitled to find that Centeno's diabetic symptoms were present when he visited Dr. Turner. The jury was also entitled to find that these symptoms should have alerted Dr. Turner to order a blood test which would have revealed the diabetes. A shipowner is vicariously responsible for the negligence of a physician it chooses to treat its seaman. Central Gulf Steamship Corp. v. Sambula, 405 F.2d 291, 302 (5th Cir.1968); Joiner v. Diamond M Drilling Co., 688 F.2d 256, 262 n. 9 (5th Cir.1982).

The jury was also entitled to find that the ship's officers were negligent in failing to seek additional medical treatment for Centeno following his return to the ship from his visit to Dr. Turner. Dr. Chavarria's testimony that if Centeno had received proper treatment in the United States for diabetes he could have resisted the organic infection that caused his death provided the necessary causal link between the negligent failure to treat Centeno and his death.

B.

Gulf Fleet next contends that the unitemized $776,000 award to Centeno's survivors is excessive. Gulf Fleet correctly asserts that appellant was limited by the Jones Act to recovery of pecuniary losses. In re Merry Shipping, Inc., 650 F.2d 622, 624 (5th Cir.1981). Recoverable items include loss of support from Centeno's past and future earnings; loss of Centeno's household services; loss of parental nurture and guidance of his minor children until the age of majority; and recovery for Centeno's predeath pain and suffering. Ivy v. Security Barge Lines, Inc., 606 F.2d 524 (5th Cir.1979) (en banc).

In evaluating whether the jury's award is excessive, we are mindful that assessment of damages is for the trier of fact, and "in this area the appellate court should step lightly or not at all." In re Air Crash Disaster Near New Orleans, Louisiana on July 9, 1982, (Giancontieri), 767 F.2d 1151, 1155 (5th Cir.1985). In Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 783-84 (5th Cir.1983) we stated:

We do not reverse a jury verdict for excessiveness except on "the strongest of showings." The jury's award is not to be disturbed unless it is entirely disproportionate to the injuries sustained. We have expressed the extent of distortion that warrants intervention by requiring such awards to be so large as to "shock the judicial conscience," "so gross or inordinately...